Why access to information is crucial

Thursday, May 7, 2015

Cartoon by Mahmood Salami

This article appears in the 2014-15 Review of Free Expression in Canada. Read the full Review here. Canada’s access to information (ATI) system is in shambles: requests are delayed ad infinitum (despite the 30-day response timeframe required by law); when documents are provided, they are often heavily redacted; and the information commissioner who oversees the system is all but powerless to enact change. Basically, if the federal or a provincial government doesn’t want controversial documents to get out, it can stop them from reaching the public. Yet, enterprising journalists find a way to get crucial stories published, sometimes with the help of our access system, and sometimes by manoeuvering around it. Here are four such stories. They each show why our access system is so critical yet so fragile, what journalists have to go through to get their stories told, and why it’s crucial that Canadians be able to fully exercise their right to know.

Natural Resources Canada’s Secrets

By Tom Spears

In the summer of 2010, Ottawa was jolted by a magnitude 5.0 earthquake that rumbled on and on. People were truly frightened. Yet from that moment—1:41 p.m.—until early evening, communications staff at Natural Resources Canada (NRCan) were puzzlingly silent. Only the U.S. Geological Service was talking.

Months later, documents obtained through an access to information request showed why. Orders from senior management told the communications people to say nothing until management gave them the okay to talk, which was hours later. They reveal conflicting orders and organizational paralysis that came from the top, even after seismologists had solid information to provide.

NRCan finally set up a conference call for reporters at 6 p.m., but due to hours of internal dithering, it didn’t announce this until 24 minutes later, just as the call ended. Only three reporters were able to join in. In this case, the refusal to talk did no damage. But it raises a troubling question: what if this had been a disaster?

It was only through the Ottawa Citizen’s access to information request that Ottawa residents saw the way the department in charge of earthquake data hid this information at the crucial time, when people needed it.

This is a recurring theme. Access requests in recent years have repeatedly shown federal officials hiding, dodging and stonewalling over important matters—and even over those that could not possibly have any impact on government.

In the winter of 2012, NASA launched a mission to Ontario. A NASA aircraft and one from our own National Research Council flew around over southern Ontario to measure falling snow. Afterwards, NASA talked freely but NRCan refused. Later, through an access request, the Citizen obtained some 50 pages of emails that show 11 NRCan people twisting and turning in an effort to say as little as possible, beginning when the boss announced: “I am not convinced we need an interview. A few lines on our involvement are fine. Let me see them first.” The written lines, when they arrived, didn’t even discuss snow.

Postmedia News reporter Margaret Munro found documents showing how government managers refused to let a scientist talk about an ice age event that took place 13,000 years ago. Two British universities involved in the ice age study, published in the highly respected journal Nature, put out press releases and their researchers gave interviews. NRCan, meanwhile, didn’t allow its own scientist to talk until reporters had already written their stories.

Back in 2006, two Ottawa scientists working for NRCan helped to discover the real kryptonite. At least, they and their colleagues in Britain identified a mineral with the same formula that was used for kryptonite in one of the Superman movies.

It could have been fun, but Official Ottawa killed any hint of our involvement. An access request turned up the NRCan emails that kept the Canadian role secret. Here’s one:

“We received a last-minute request from our Parliamentary Affairs group last night, at about 6 p.m. to temporarily withhold distribution of our Media Release. Apparently the Privy Council Office wants an opportunity to review this item prior to its dissemination…”

Most of this note was blacked out by access to information officials as it relates to “business of government.”

Finally, a day later, this: “Bonjour. Good news! I just got confirmation that the release is approved.” Canada’s announcement went out a day after media had already run the story. Newspapers around the world had hailed a British discovery, with no mention of Canada.

Larry’s Gulch Scandal

By Jacques Poitras

In New Brunswick, a routine Right to Information request has unexpectedly revealed a cozy government-journalism relationship, highlighted the growing role of new media in keeping “old media” accountable, and exposed possible political interference with the Right to Information process itself.

In October 2013, Shawn Berry, a reporter with Irving-owned Brunswick News, obtained that year’s guest list for Larry’s Gulch, a remote government-owned salmon fishing lodge often used to wine and dine corporate executives looking to invest in the province. Over the years, the lodge has become great fodder for journalists who have used the Right to Information and Protection of Privacy Act (New Brunswick’s access to information law) to expose its abuse by politicians using it to entertain their partisan pals.

Berry discovered more than the usual scoop: on one of the 2013 weekend lists was the name of Murray Guy, an editor at one of Brunswick News’s own newspapers. Guy had been a guest of the government-owned NB Liquor Corporation, whose CEO at the time was a political appointee of the Progressive Conservative government. Berry reported the discovery to his boss, and after some back-and-forth among managers, the newspapers opted to publish nothing about the trip—until February 2015, when Canadaland, a website and podcast devoted to media criticism, started nosing around. Guy soon resigned and another editor, Al Hogan, was fired.

Patricia Graham, the Brunswick News ombudsman, published her findings on Feb. 16, on page one of the Telegraph-Journal, Times & Transcript and The Daily Gleaner, revealing a stunning new piece of information: Guy and Hogan, she reported, had asked a senior political staffer in the PC government to alter the lists to conceal Guy’s trip from subsequent Right to Information requests. Sure enough, a competing newspaper, L’Acadie Nouvelle, which requested the same 2013 guest list months after Berry alerted his bosses, noted its version had no trace of Guy’s trip.

The new Liberal government, which came into power in the fall of 2014, ordered a review of how the Right to Information requests had been handled, and the resulting report contained another shocker: an employee of the tourism department, which operates the lodge, had proactively gone looking for a pretext to exempt the record of Guy’s trip, urging NB Liquor to write a letter invoking competitive concerns. Officials from the office of then-Premier David Alward, who was also on the trip, got involved as well. Questions remain, but it seems apparent now that political staffers worked together to alter the public record.

Coincidentally, N.B. premier Brian Gallant’s government recently launched a mandatory review of the Right to Information and Protection of Privacy Act, to ensure, according to Government Services Minister Ed Doherty, that the law “continues to serve the needs of New Brunswickers.” This gives New Brunswick a perfect opportunity to strengthen public access and put new restrictions on partisan staffers interfering with the processing of requests—a potential silver lining to an otherwise shabby episode.

Jacques Poitras (@poitrasCBC) is a CBC New Brunswich reporter and the author of Irving vs. Irving: Canada’s Feuding Billionaires and the Stories They Won’t Tell.

Canada’s Torture Memos

By Jim Bronskill

Opponents of torture say it is not only a barbaric violation of fundamental human rights, but also a highly unreliable method of intelligence-gathering. People being abused will often say anything to make the pain stop.

Documents obtained under the Access to Information Act show Canada’s Conservative government stopped short of a categorical repudiation of torture, instead issuing memos to security and defence agencies permitting the use of information that may have been gathered through coercion. The series of documents, dubbed Canada’s torture memos, formed the basis of several exclusive stories—ones that could not have been written without freedom of information.

Maher Arar, as many Canadians know, was brutalized in a Damascus prison after being shipped to Syria by the Americans—very likely because of shoddy information from the RCMP.

The story of Canada’s torture memos has deep roots in the Arar tragedy and the cases of three other Arab-Canadians—Abdullah Almalki, Ahmad El Maati and Muayyed Nureddin— all of whom were tortured in Syria.

As a result of bungling in the Arar case, government agencies including the RCMP enacted numerous changes in how they collect and share information in cases where torture may have been a factor.

In fact, the government claimed to have implemented all recommendations from Justice Dennis O’Connor, who led a federal inquiry into the Arar file—including his call for policies to include specific directions “aimed at eliminating any possible Canadian complicity in torture, avoiding the risk of other human rights abuses and ensuring accountability.”

But there were indications as early as 2010 that the Canadian Security Intelligence Service (CSIS) had quietly embraced an approach to information use that clashed with the O’Connor recommendations. But it would take a disclosure under the federal access law to document this significant shift. A story I wrote on Feb. 7, 2012, revealed details of the letter from Vic Toews, then the public safety minister, to CSIS, directing the spy agency to use information possibly derived through torture in cases where public safety is at stake.

The order represented a reversal of policy for the Conservative government, which once insisted CSIS would discard information if there was any inkling it might be tainted.Toews had quietly told CSIS the government now expected the spy service to “make the protection of life and property its overriding priority.”

The story reverberated, touching off a national debate about Canada’s respect for human rights and compliance with international law.

I wrote several more stories—also using information released under the access law—that laid bare the contents of a fuller follow-up directive to CSIS, looked at the workings of an internal spy agency committee on interpreting the directive, and showed that the Mounties, the federal border agency, the military and the electronic spies at the Communications Security Establishment (CSE) were given similar instructions.

These later directives outlined the process for deciding whether to share information when there is a "substantial risk" that doing so might result in someone in custody being abused.The ministerial instructions sparked staunch Conservative defences, drew fiery denunciations from opposition MPs in the House of Commons, stirred outrage among human-rights groups and prompted concern on the part of the United Nations Committee Against Torture.

However, without Canada’s Access to Information Act, the content of these federal orders would have remained secret.

Lorne Waldman, a lawyer who had represented Arar, said the information-sharing directives showed the government hadn't learned anything about shunning brutality. “It’s extremely disappointing that after all of these years, and after all of the effort, we’re not any further ahead than we were.”

ATI in B.C.

By Sean Holman

A U.S. freedom of information request exposed the business dealings of one of British Columbia’s most powerful political operatives and helped reform the province’s lobbyist registration laws. But if that request had been filed in Canada, those dealings may have never been brought to light.

Patrick Kinsella had co-chaired the B.C. Liberal election campaigns that swept the party to power in 2001 and returned them to power in 2005. Later described by reporters as a “quiet titan” and “the quintessential insider in B.C. politics,” his day job was heading up The Progressive Group. In its own words, the company stated in 2006 that it had provided “strategic communications to some of the leading business, government and sport organizations provincially, nationally and internationally who are interested in doing business in British Columbia or in Canada.”

But, back in 2004, Kinsella’s client list didn’t appear to be on the public record. Under provincial law, Kinsella would only be required to disclose those clients if he had been lobbying the government for them. And that’s exactly what he told me he wasn’t doing, stating, “I make it very clear to my clients that I don’t do that.”

That was almost the end of the story, until a Google alert four years later. It drew my attention to an American news report suggesting Progressive’s then-president Mark Jiles might be working for the State of Washington. On a hunch, I filed a freedom of information request for any records about that work.

Eight days later, the state sent me 153 pages detailing the “business development and market consultant” services Progressive had provided to it during the lead up to the Vancouver 2010 Winter Olympic Games.

That’s 25 days faster than British Columbia’s average response time to freedom of information requests from the media. But I wasn’t just astonished by the speed of that response.

I was also astonished almost none of the records had redactions. Those records included the resumé Progressive had submitted to win its contract with the state—something that would have likely been blanked out by B.C.’s freedom of information laws.

But because it wasn’t, I now had a record that revealed the company helped win major B.C. government benefits and contracts on behalf of powerful business and foreign interests, including Accenture Business Services and aluminum manufacturer Alcan.

Following my reporting on the issue, the opposition B.C. NDP asked the lobbyists registrar, and later the RCMP, to investigate whether Kinsella had violated the province’s lobbyists registration law—something Progressive denied.

Because of flaws in the legislation—the lobbyist registrar had no powers, and proceedings could only be brought against an individual within six months of an alleged offense taking place—neither the registrar nor the police were able to do that. But the story, which spilled over into the 2009 election, helped pressure the government to reform the Lobbyists Registration Act.

And, by the way, after those reforms were passed—which included broadening the definition of what constitutes lobbying—Kinsella registered as a lobbyist.

Sean Holman (@publiceyeonline) is a journalism professor at Mount Royal University.Read this article and more in the Review of Free Expression in Canada.Correction: The wording in "ATI in B.C." about legal proceedings has been changed from the original text for factual accuracy.